Colarusso v Lo 2013 NY Slip Op 33465(U) September 25, 2013 Supreme Court, New York County Docket Number: /10 Judge: Joan B. Lobis Cases posted

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1 Colarusso v Lo 2013 NY Slp Op 33465(U) September 25, 2013 Supreme Court, New York County Docket Number: /10 Judge: Joan B. Lobs Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] - CJ) -z 0 CJ) q: w a: C!1 wz j::~ (.) - CJ)..J ::::>...J.., 0 0 LL. t- w c ::z: w t a: a: a: 0 ~ u.. w a: >...J... ::::> LL. t u w Q, V) w a: ~ w CJ) q: (.) -z 0 j:: 0 ~ SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: L 0 &/.:::> PART. b - v A ~.btt.e "'-' Y L."'o,. H. fj. The followng papers. numbered 1 to Justce NDEX NO. MOTON DATE MOTON SEQ. NO. MOTON CAL. NO. - /c?'//~ 0/9j/j.. 7 were read on ths moton to/for.9u~ 1''ref Notce of Moton/ Order to Show Cause Affdavts - Exhbts.. Answerng Affdavts - Exhbts Replyng Affdavts--' Cross-M.oton: 0 Yes D No/. Ff l E D Upon the foregong papers, t s ordered that thj moton l, DEC q:}. PA/ERS NU.MBERED ~EWYORK, CLERK'S 0FACF l.. THS MOTfON S DECDED N ACCOfE).4NCE WTH THE ACCOMPANYNG MEMOV~.~DU DECSON ~ v~ Dated: l_f_,_~_5./'---t~_._. J:S.C. Check one: 0 FNAL DSPOSTON ~NON-FNAL DSPOSTON Check f approprate: 0 DO NOT POST. 0 REFERENCE 7

3 [* 2] r SUPREME COURT OF THE STATE OF NEW YORK NEWYORKCOUNTY: ASPART ~ ~ X HARRET COLARUSSO, ANDREW Y. LO, M.D:, -aganst- F. 1. L E D Plantff, DEC ndex No NEW YORK COUNTY CLER~ OFF1 -.. Defendant ~ }{ JOAN B. LOBlS, J.S.C.: ~ecson and Order Ths medcal malpractce acton arses out of a hemorrhod bandng procedure performed on Harret Colarusso by Andrew Y. Lo, M.D. Ms. Colarusso sues Dr. Lo, allegng medcal neglgence and lack of nformed consent. Ms. Colarusso clams that, as a result of the medcal neglge~ce and lack of nformed consent, she suffered from permanent ncontnence and a recurrent anal fssure. Dr. Lo moves for summary judgment pursuant to Secton 3212 of the Cvl. Practce Law and Rules. Alternatvely, Dr. Lo, pursuant to Fzye v. Unted States, 293 F (D.C. Cr. 1923), moves for an order precludng the Plantffs expert testmony or grantng a hearng on the grounds that the opnons to be offered are not generally accepted by the relevant scentfc and medcal communtes. For the followng reasons, the moton s dened. Dr. Lo frst treated Ms. Colarusso on October 2, She had been sufferng from bleedng hemorrhods and frequent bowel movements. Her medcal hstory showed, among other condtons, chronc myelogenous leukema ("CML") and sx years of recurrng clostrdum dffcle, nfecton ("C. d.ff'), both of whch had requred numerous hosptalzatons. Dr. Lo performed a ' 1

4 [* 3] ~--- - / dgtal examnaton of the rectum, followed by an anoscopy. Dr. Lo alleges that he nformed the patent that f he saw hemorrhods he would repar them by performng a bandng procedure. He also clams to have nformed Ms. Colarusso of any rsks nvolved n the procedure. Durng the anoscopy; Dr. Lo dentfed two nternal hemorrhods above the dentate lne, whch s approxmately 2 centmeters above the openng of the anal canal. Dr. Lo appled local anesthetc and banded these by applyng a band that cuts off crculaton to the hemorrhods, causng. them to slough off. The patent was then sent home. Four days later, Ms. Colarusso went to the.beth srael Medcal Center ("Beth srael") emergency room, complanng of rectal pan. A surgcal resdent nformed Dr. Lo of Ms. Colarusso's complants. The surgcal resdent then examned her. Upon examnaton, the surgcal resdent found no erythema or nduraton. There was no gross blood, but Ms. Colarusso dd experence pan durng the dgtal examnaton. Ms. Colarusso was recommended analgescs, a Stz.. bath, and a follow up vst wth Dr. Lo.! The next day Ms. Colarusso returned to Beth srael's emergency room complanng.. of contnued rectal pan. She was recommended further pan medcatons and stool softeners but refused to go home ~d was admtted. On October 8, 2007, Dr. Lo came to Beth srael to examne : Ms. Colarusso. ~he refused a dgtal rectal examnaton because of the pan. The followng day, Dr. ~ Lo performed the examnaton whle Ms. Colarusso was under anesthesa. Dr. Lo used a retractor and observed a fssure n the posteror mdlne of the anal canal. The fssure was located 2

5 [* 4] approxmately 2-3 centmeters away from the bandng. Dr. Lo repared the fssure, and, on October 12, 2007, Ms. Colarusso was dscharged. On November 20, 2007, Ms. Colarusso saw Dr. Lo for her follow up vst. Dr. Lo clams that Ms. Colarusso dd not complan of pan and that the fssurectomy had healed well. There was no rectal bleedng or tenderness. He documented that she had good sphncter tone but was not excessvely tght. Ms. Colarusso also saw Joseph Martz, M.D., a colon and rectal surgeon, on December: 28, She provded her medcal hstory and complaned of ntermttent, brght red blood from' her rectum and peranal rrtaton. Dr. Martz examned her and noted a posteror mdlne anal fssure. Ms. Colarusso had two follow up vsts wth Dr. Martz. At Ms. Colarusso' s second follow up appontment, on March 14, 2008, Dr. Martz noted her decreased stool frequency and mprovng dscomfort. On May 13, 2008, Ms. Colarusso was seen by Mchael Goggns, M.D., a gastroenterologst at John Hopkns Medcal Center. Dr. Goggns evaluated Ms. Colarusso's C. df/ colts. She reported that the hemorrhod bandng caused her to develop poor anal functon wth leakage, soreness, and recurrent darrhea. She was prescrbed several medcatons and Dr. Goggns noted that t would be dffcult to fnd other alternatves to assst her wth her bowel ssues. Dr. Martz saw Ms. Colarusso agan on June 23, She nformed hm that her darrhea had resolved, and she could move her bowels wthout pan or bleedng, but Dr. Martz noted. 3

6 [* 5].~ she stll had a fssure at the top of the anus. Over a year later, Ms. Colarusso was seen by Lawrence Brandt, M.D., for complants of darrhea and C. dff Dr. Brandt also noted the mdlne anal fssure.. Between June 23, 2009, and February 6, 2010, Ms. Colarusso w,as admtted to Beth srael eght tmes for complants related to her C. dff. On March 26, 2010, Ms. Colarusso was agan seen by Dr.' Martz, who noted that her fssure had resolved. n March 2010, Ms. Colarusso began ths medcal malpractce acton aganst Dr. Lo. On Aprl 7, 2010, Ms. Colarusso was treated by oncologst Larssa Temple, M.D.,. at Memoral Sloan Ketterng Cancer Center. Ms. Colarusso reported that she leaked lqud stool for about one hour.after every bowel movement. Dr. Temple recommended an anal manometry and an. ultrasound. On May 25, 2010, Dr. Jeffrey Aronoff performed an anal manometry, balloon expulson,. and neurologcal studes. Ms. Colarusso' s studes showed that. she had "extremely hgh restng pressure and restng pressure volume, normal sphncter length and percentage of cross sectonal asymmetry." The anal manometry dd not ndcate a sphncter defect. Because of Ms. Colarusso's anal fssure, a balloon expulson test was not performed. On January 5, 2~11, Ms. Colarusso had an appontment wth Vctor A. Gallo, M.D., a colon and rectal surgeon, to address her rectal bleedng. Dr. Gallo noted that Ms. Colarusso had rectal bleedng and symptomat~ nternal hemorrhods, whch he suggested treatng wth sclerotherapy treatments to control the rectal bleedng. Ms. Colarusso saw Dr. Gallo multple tmes. ' between January 5, 2011~ and May 3, 2013, due to her rectal bleedng. 4

7 [* 6] On June 8, 2011, Ms. Colarusso had a second appontment wth Dr. Temple. Dr. Temple, followng an examnaton, noted that there was an abnormalty n the nternal sphncter and that the anoscopy showed three complexes of grade two to three hemorrhods but no evdence of a fssure. Dr. Temple beleved that Ms. Colarusso had a defect n her nternal sphncter from Dr. Lo' s procedure. n July, 2012, Ms. Colarusso saw Dr. Martz agan. Dr. Martz noted that Ms. Colarusso stll had a posteror mdlne anal fssure. n movng for summary judgment on the medcal malpractce clam, Defendant argues. that there are no genune ssues of materal fact and that he s enttled to summary judgement as a matter of law.. n support of hs moton, he provdes the expert opnon of Randolph Stenhagen, M.D., a Board-certfed colon and rectal surgeon, the deposton testmony, and Ms. Colarusso's medcal records. Dr. Stenhagen asserts that a hemorrhod bandng performed n one part of the rectum cannpt cause an schemc njury and fssure to another part of the rectum and that Dr. Lo cannot be responsble for Plantffs njures, ncludng the anal fssure. Dr. Stenhagen opnes that t s more lkely that the. fssure was present pror to Dr. Lo's treatment and was recurrent. Dr.. Stenhagen argues that the anal manometry establshes that Ms. Colarusso had a fully functonal sphncter after Dr. Lo' s treatment. Addtfonally, Dr. Stenhagen states that Dr. Lo met the approprate standard of care. Defendant contends he establshed a prma face case for summary judgment, and that Plantff must meet the burden of demonstratng that there are trable ssues of fact. Defendant also seeks summary judgment on the clam of lack of nformed consent. Defendant states that he obtaned consent from Ms. Colarusso. Dr. Lo asserts that he advsed Ms. 5

8 [* 7] '.. Colarusso of the rsks and receved oral consent. Dr. Stenhagen affrms that for mnmally nvasve procedures, such as hemorrhod bandng, recevng oral consent s consstent wth accepted medcal and surgcal standards and that wrtten nformed consent s not requred. Plantff opposes Dr. Lo' s moton. Plantff argues genune ssues of materal fact reman. Plantffs expert, Mchael Goggns, M.D., a gastroenterologst at John Hopkns Medcal Center, opnes that Ms. Colarusso's permanent ncontnence s a drect result of Dr. Lo's bandng. l 1 procedure. Dr. Goggns states that Dr. Lo departed from good and accepted medcal practce by placng the band too close to the base of the hemorrhod and, as a result, ncluded surroundng epthelal tssue. Ths compromsed blood flow to the sphncter muscle, whch permanently: weakened the muscle n the area of the bandng. Dr. Goggns explans that the anal manometry,. whch dd not show sphncter defects, does not measure every porton of the sphncter muscle but rather measures varous ponts usng catheters placed n the rectum and attached to a machne that. measures actvty. Due to ths; there may be normal pressure where catheters are placed but a lack; of suffcent pressure n a partcular area that can cause ncontnence. Furthermore, Dr. Goggns. alleges that Dr. Lo should have taken partcular care n the placement of the bands because Ms. Colarusso's age and medcal hstory placed her.at a greater rsk of compromsed blood flow. Dr., Goggns also states that Dr. Lo's msplacement of the band resulted n Ms. Colarusso's recurrent anal fssure. f the anal fssure was preexstent, Dr. Goggns opnes that a hemorrhod bandng would have been contrandcated. Fnally, Plantff alleges that Dr. Lo dd not have nformed consent. n her affdavt, 6

9 [* 8] Ms. Colarusso states that Dr. Lo dd not advse her about the bandng procedure and only nformed her after performng the procedure. n her deposton', Ms. Colarusso explans that she thought she had come n for a consultaton only. Followng the procedure, she dd not sgn any forms or receve any nformaton about a follow up appontment. Dr. Goggns asserts that Dr. Lo needed formal \ consent before undergong the procedure and should have advsed the Plantff of the rsks assocated wth the procedure, ncludng an ncrease n the chance of njury to the tssue near the bandng procedure. r n reply, Defendant argues that Dr. Goggns' clam that "severe pan durng and after the [bandng] procedure s a strong ndcator that more than hemorrhods were banded" s nsuffcent to defeat Defendant's prma face showng for sunmary judgment dsmssal. Defendant clams that Plantff dd not rebut the results of Ms. Colarusso' s anal manometry. Dr. Lo avers that the medcal theory offered by Plantff s not based on upon theores of medcne whch are generally accepted wthn the medcal communty. Defendant clams that Ms. Colarusso's expert cannot offer peer-revewed lterature, case studes, or other accepted evdence to support the medcal theory: underlyng ther case. Dr. Stenhagen states that Plantffs expert's theory s not accepted by the medcal communty. Defendant asks the Court to ether preclude expert testmony or to nqure nto the relablty of the Plantffs medcal theory by conductng a Frye Hearng. Furthermore, Dr. Stenhagen dsputes Dr. Goggns' clam that, when there s a pre-exstng anal fssure, a hemorrhod bandng s contrandcated. n consderng a moton for summary judgment, ths Court revews the record n the 7

10 [* 9].. lght mo~t favorable to the non-movng party. E.g., Dallas-Stephenson v. Wasman, 39 A.D.3d 303, 308 (1st Dep't 2007). A movant must support the moton by affdavt, a copy of the pleadngs, and other avalable proof; ncludng depostons and admssons. C.P.L.R. Rule 3212(b ). The affdavt must recte all materal facts and show, where a defendant s the movant, that the cause of acton has. no mert Ths Court may gran~ the moton f, upon all the papers and proof submtted, t s establshed that the Court s warranted as a matter of law 'n drectng judgment. d. t must be dened where facts are shown "suffcent to requre a tral of any ssue of fact." d.. n a medcal malpractce case, to establsh enttlement fo summary judgment, a physcan must demonstrate that he dd not depart from accepted standards of practce or that, even. f he dd, he dd not proxmately cause njury to the patent. Rogues v. Noble, 73 A.D.3d 204, 206 (1st Dep't 2010). n clamng treatment dd not depart from accepted standards, the movant must provde an expert opnon that s detaled, specfc and factual n nature. E.g., JOyner-Pack v. Sykes, 54 A.D.3d 727..,, 729 (2d Dep't 2008). Expert opnon mustbe based on the facts n the record o( those personally known to the expert.. Rogues, 73 A.D.3d at 206. The expert cannot make;. conclusons by assumng materal facts not supported by record evdence. d. Defense expert.? opnon should' specfy "n what way" a patent's treatment was proper and "elucdate the standard of care." Ocaso-Gay v. Lawrence Hosp., 69 A.D.3d 403, 404 (1st Dep't 2010). A defendant's expert opnon must "explan 'what defendant dd and why.'" d. (quotng Wasserman v. Carella,... ' 307 A.D.2d 225, 226 (1st Dep't 2003)). Conclusozy medcal affrmatons or expert opnons that.. fal to address. a plantff's essental factual allegatons are nsuffcent to establsh prma face ' enttlement to sunmary judgment. 73 A.D.3d at 206. Once a defendant establshes a prma face 8. '

11 [* 10] r.. case, a plantff only then must rebut that ~howng by submttng an affdavt from a medcal doctor attestng that the defendant departed from accepted medcal practce and that the departure proxmately caused the alleged njures. d. at 207. Dr. Lo has establshed a prma face case for summary judgment. Dr. Stenhagen provdes a detaled, specfc, and factual opnon: See Joyner-Pack, 514 A.D.3d at 729. He descrbes a hemorrhod. bandng as a mnmally nvasve, ambulatory procedure, performed wthout anesthesa,. whch.requres very lttle to no follow-up care. Furthermore, he states that such a treatment was approprate for the treatment of Ms. Colarusso's nternal hemorrhods. He explans that based on the locaton of the hemorrhod t s 9-0t possble that an schemc njury could have occurred at the ste alleged. Furthermore, he argues that, based on the medcal records, that there s no objectve evdence that Ms. Colarusso has a damaged sphncter. Because D~. Lo has establshed a prma face case for summary judgment, Plantff must then rebut the showng by submttng an affdavt from a medcal doctor. Rogues, 73 A.D.3d at 206. Ms. Col.arusso provdes the expert opnon of Dr. Mchael Goggns. Dr. Goggns attests that Dr.. Lo departed from accepted medcal practce and that the departure proxmately caused the alleged njures. Dr. Goggn~ asserts that the anatomcal and physologcal concepts that he used to evaluate Ms. Colarusso are well founded n medcne and not. novel. He opnes that.f the band used n the procedure were placed too close to the epthelum and anal margn, that tghtness and excess pressure would develop n the surroundng tssue, ncludng. the sphncter muscle. The tghtness would then compromse blood flow and weaken the sphncter 9

12 [* 11]... muscle n the area where the bandng procedure was performed.! l Dr. Stenhagen and Dr. Goggns dsagree over a number of medcal opnons, such as whether a bandng procedure s contrandcated when an anal fssure s present, whether an anal fssure can be caused by bandng, the effectveness of the manometry test, or what severe rectal pan can ndeate about bandng. Summary judgment s not approprate when both partes' medcal experts have conflctng opnons. Magel v. John T."Math~r Memoral Hosp., 95A.D.3d 1081, 1083 (2nd Dep't 2012). Clams of lack of nformed consent are statutorly defned. Pub. Health 2805-d. The law requres persons provdng professonal treatment or dagnoss to dsclose alternatves and reasonably foreseeable rsks and benefts nvolved to the patent to permt the patent to make a knowng evaluaton. d d(l ). Causes of acton for lack of nformed consent are lmted to.. non-emergency procedures or other treatment and nclude dagnostc procedures that nvolve ' ' nvason or dsrupton to bodly ntegrty. d d(2). To ultmately preval on a lack of nformed consent clam, a clamant must prove that a reasonably prudent person n the patent's poston would not have undergone the treatment or dagnoss had the patent been fully nformed, and the clamant must prove that the lack of nformed consent s a proxmate cause of the njury or. condton for whch recovery s sought. d d(3). Dr. Lo has not met hs ntal burden n establshng enttlement to summary judgment on the lack of nformed consent clam. Though Dr. Lo clams to have nformed the plantff of the. O

13 [* 12]... ' ' 3 procedure, there s no objectve e_vdence, such as a sgned consent form, that ndcates that, n;.. accordance wth Publc Health Law Secton 2805-d(l), he nformed Ms. Colarusso of any of the foreseeable rsks, benefts, or alternatves. See Ercson v. Pallesch, 23 AD.3d 608, 610 (2nd Dep 't 2005). Lastly, the Court addresses Defendant's request for a Frye Hearng. n New York, the Em rule s that "expert testmony based on scentfc prncples or procedures s admssble but only after a prncple or procedure has 'ganed general acceptance' n ts specfed feld." People v. Wesley, 83 N.Y.2d417, 422 (1994) (gyotngfrye, 293 F. at 1013). Novelexpertmedcaltestmony propounded by plantffs to establsh causaton that lacks any objectve support from the medcal communty should not survve a Fzye challenge. See Lara v. New York Cty Health & Hosps. Com., 305 A.D.2d 106 (1st Dep't 2003). Frst Department case law, however, supports the noton that w hearngs should not be granted wth great regularty as a means of precludng expert medcal causaton testmony n malpractce suts. See,~. Ashton v. D.O.C.S. Contnuum Med. Group, 68 A.D.3d 613, 614 (1st bep't 2009); Meth v. Gorfne, 34 A.D.3d 267, 268 (1st Dep't 2006).. The threshold queston s whether or not Plantff s offerng novel expert medcal testmony. The purpose of the Fzye test s "to dstngush between scentfc prncples where are 'demonstrable' and those whch are 'expermental[.]"' Marsh v. Smyth, 12 A.D.3d 307, 310 (1st Dep't 2004). Dr. Goggns s offerng experttestmony as to whether a certan treatment could have. the effects that Ms. Colarusso alleges; there s no "newly mnted procedure or test, or a newly posted behavoral syndrome,, that would requre a Fye hearng. d. at 311. That a theory s establshed n 11

14 [* 13]... ' # anatomcal and physologcal concepts, nstead of studes n peer revewed lterature, does not mean that t s novel. See d. at 311. Nor s t requred that Plantff submt peer-revewed lterature, snce not every theory prompts the professon to conduct studes. See d. Furthermore, n the medcal records attached to Defendant's papers, several doctors clam that t s possble that Ms. Colarusso's njures were caused by the bandng procedure, even f they mght not all clam that the njury was actually caused by the procedure. Ths drectly conflcts wth Dr. Stenhagen' s reply affrmaton that states that Dr. Goggns' theory s not accepted by the medcal communty. Dr. Stenhagen also does not clam that the methodology used by Plantfr s expert s novel, even f hs concluson s dfferent. Questons as to the logc or foundaton of Dr. Goggns' concluson can be addressed durng tral... Accordngly, t s ORDERED that the moton s dened; and t s further ORDERED that the partes appear for a pre-tral conference on,~, ~,L..-.;:f.'--')L...J~ 11 'f ajq ~.; o Dated:.Abrl.A, (;,2013 ~ 1 r r ' FLED DEC NEW YORK COUNTY CLERK'S OFFQ'!... ENTER: 12